A lawyer who hired a private
investigator to determine whether a city attorney was engaged in an
inappropriate romantic relationship with the city manager and was later rebuked
by the City Council for his actions should not have had his claim of
retaliation thrown out as a SLAPP, the Sixth District Court of Appeal said
yesterday.

The panel concluded that
Bruce Tichinin demonstrated a sufficient likelihood of prevailing on his 42
U.S.C. § 1983 action against the city of Morgan Hill and reversed Santa Clara
Superior Court Judge William J. Elfving’s order striking the complaint.

In 2003, after
Councilwoman Hedy Chang made known her belief that Morgan Hill City Manager J.
Edward Tewes and City Attorney Helene Leichter were having an affair and Leichter
threatened to take legal action, Chang retained Tichinin.

At this time, Tichinin
also represented two clients in matters before the council. Tichinin said he
suspected Tewes had been able to influence Leichter to change her
recommendation regarding one of these matters.

Upon conveying his
suspicions to his client, he said his client authorized him to hire an
investigator.

If the investigation
uncovered evidence of an affair, Tichinin claimed, he intended to inform the
council and request Leichter be removed from further involvement with his
client’s matter due to a conflict of interest.

While attending a
conference in Huntington
Beach in
2004, Tewes said he noticed that he was being watched and became worried that
someone was stalking him. Tewes reported the surveillance to the council, which
appointed a subcommittee to investigate.

Tichinin initially
denied involvement in the surveillance when questioned by a subcommittee
member, but later recanted and explained he was investigating the rumored
relationship between Tewes and Leichter.

At a meeting July 14, 2004, the City Council
adopted a resolution that it “condemn[ed]…the unwarranted and unjustified”
surveillance of Tewes and “deplore[d]” the false statements Tichinin had made
to avoid disclosure of the surveillance.

The attorney then filed
his Sec. 1983 action, asserting that his actions in hiring an investigator were
protected under his First Amendment rights of petition and free speech. The
city responded with a special motion to strike, which the trial court granted.

On appeal, Tichinin
conceded that his action was based on acts by the city that would qualify for
protection under the anti-SLAPP statute, so that the burden was on him to show
a probability of prevailing on the merits of his claims to withstand the motion
to strike.

Presiding Justice Conrad
L. Rushing reasoned that the hiring of an investigator, like discovery or
settlement talks, could not be considered protected petitioning activity, but
that it still fell within the “breathing space” necessary for the effective
exercise of the right to petition as long as it is incidental or reasonably
related to an actual petition or actual litigation, or to a claim that could
ripen into a petition or litigation, and the petition, litigation or claim is
not a sham.

As investigation of a
potential claim “is normally and reasonably part of effective litigation, if
not an essential part of it,” and an attorney has a duty to investigate the
facts underlying a client’s claims and can be sanctioned for failing to do so,
Rushing posited that the prelitigation investigation of a potential claim “is
no less incidental or related to possible litigation than prelitigation demand
letters and threats to sue, which are entitled to protection.”

Accepting as true all
evidence favorable to Tichinin, Rushing concluded the attorney had made a prima
facie showing that his investigation was reasonably related to a potential
claim that Leichter had a conflict of interest—a claim that he would have made
to the council or incorporated into a lawsuit against the city had that
investigation produced evidence of an inappropriate romantic relationship to
support it.

Absent any evidence
conclusively establishing that the alleged romantic relationship and claim of
conflict of interest that Tichinin purported to investigate were a sham,
Rushing said the attorney had presented a viable claim.

“To defeat the
anti-SLAPP motion, Tichinin did not have to show that the alleged relationship
and potential conflict of interest caused or affected the [coucil’s] formal decisions
or would or could ultimately have led to a reversal of those decisions,” the
justice emphasized. “Tichinin’s burden was to show that the investigation was
sufficiently related to a potentially valid, non-sham effort to petition the
government to constitute protected conduct.”

Although Tichinin
asserted separate causes of action based on violations of his rights to
petition and right of free speech, Rushing noted those claims were essentially
identical insofar as both alleged that hiring an investigator was protected
conduct, adding that the hiring of an investigator can also be considered
protected under the right of free speech.

“[T]he right of free
speech protects not only the actual expression of one’s views, thoughts,
opinions, and information concerning improper or unlawful conduct by public
officials but also non-expressive conduct that intrinsically facilitates one’s
ability to exercise the right of free speech, including lawful efforts to
gather evidence and information about public officials concerning allegedly
improper or unlawful conduct,” he said.

Tichinin’s evidence was
sufficient to make a prima facie showing that the investigation was protected
by his right of free speech, Rushing explained. The jurist cited evidence that Tichinin’s
investigator conducted surveillance of Tewes, who was attending a conference in
his official capacity as city manager, for the purpose of gathering evidence
and information concerning whether Tewes and Leichter were having a romantic
affair, which, if true, would be a matter of public concern that Tichinin
intended to communicate to members of the council and use to seek relief.

Joined by Justices
Richard J. McAdams and Wendy Clark Duffy, Rushing concluded that Tichinin had
introduced sufficient evidence to support findings that he was engaged in
conduct protected by the First Amendment rights to petition and right of free
speech which allowed his claim to withstand the SLAPP challenge.